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Apodaca introduces stricter coal ash bill

Published: Tuesday, June 17, 2014 at 4:30 a.m.

Last Modified: Monday, June 16, 2014 at 5:26 p.m.

A bill introduced Monday by two Senate leaders would close all unlined coal ash ponds in North Carolina within 15 years and ban the practice of storing wet coal ash in such basins. Four facilities with “high-risk” coal ponds, including one in Skyland, must be cleaned up within five years under its timeline.

During a Monday hearing by the Senate's committee on agriculture, environment and natural resources, Sen. Tom Apodaca and Senate Leader Phil Berger introduced their bill as a substitute to one they sponsored in May on behalf of Gov. Pat McCrory.

Under the substitute bill, coal ash ponds at Duke Energy's Dan River, Asheville, Riverbend and Sutton power plants — all of which are considered “high-risk” because of their proximity to major rivers — would have to be excavated and closed as “quickly as practicable,” no later than 2019.

The bill requires all remaining coal ash ponds at 10 other Duke power plants to be classified as either “intermediate-risk sites” and closed by 2024, or as “low-risk sites” that must be addressed by 2029. Duke has more than 100 million tons of coal ash stored in 33 unlined basins statewide.

Ash from high- and intermediate-risk sites must be stored in lined landfills or recycled toward a beneficial use such as roadway construction. But low-risk ponds could be capped in place if state environmental regulators and a new coal ash commission created by the bill agree it would be safe.

“We're going to set the standard for the rest of the country on coal ash,” said Apodaca. “Nobody has ever attempted to do anything like this. (The problem) definitely exists in Kentucky and Tennessee, but we haven't seen that much legislation dealing with it. We're going to, in a comprehensive way.”

The bill mandates that all future coal ash must be managed in new or existing lined landfills with extensive groundwater monitoring. It also requires pond owners to divert stormwater away from their impoundments, to avoid a repeat of the ruptured pipe that leaked roughly 39,000 tons of coal slurry into the Dan River last February.

While applauding the bill's elimination of future wet ash storage, attorney D.J. Gerken of the Southern Environmental Law Center in Asheville said the bill provides “very little guidance or standards to prevent truly risky sites from being placed in the low-risk category” and having utilities simply cap them.

“The truth is, no coal ash pond in the state of North Carolina is a low-risk site,” Gerken said. “It is a disaster to leave DENR the discretion to stick with the plan it has embraced for years, which is covering them over with dirt and walking away.”

Although the intent of the bill is to prevent wet coal ash from leaching toxins into groundwater or adjacent rivers, Gerken said the bill “allows the possibility of leaving the ash in place without a liner, even for high-risk impoundments.” That's because the bill cross-references an existing state regulation regarding industrial landfills, he said.

That regulation allows Duke to forgo lining coal ash disposal sites “if they demonstrate to DENR that they have a design that (computer) models say will meet water quality standards. So if DENR accepts something Duke is doing, it's not obligated to remove the ash and line it.”

But Apodaca said the “true beauty of this bill is it won't just be DENR making these decisions. That's why we have a coal ash commission, which is made up of nine experts from different backgrounds: health, power, conservation, waste management. We're going to have a full mixture of folks and that's who will be making these decisions.”

The Coal Ash Management Commission would review and approve risk classifications and closure plans proposed by ash pond owners and DENR. The bill also creates 29 new positions for overseeing coal ash management, 25 at DENR and four commission staff. All of these would be funded by coal-fired utilities, senators said, and the bill forbids them from passing that cost onto consumers.

Duke Energy leaders were still reviewing the bill in detail, said Spokesman Jeff Brooks, “but it's clear already that the bill's timeline is much more aggressive than the plan we had originally proposed to the governor and our operational plan.”

Brooks cited a presentation Duke gave to lawmakers to illustrate the potential challenges and costs of moving all of its coal ash. To clear out all 22 million pounds stored at the Marshall Steam Station on Lake Norman, near Charlotte, would take 30 years working 12 hours a day, six days a week, he said.

“This legislation is going to require all ash basins to be addressed in 15 years,” Brooks said. “So we agree that coal ash needs to be addressed in a timely fashion, but this bill will place significant burdens on the company to meet this deadline and this plan, if passed.”

Asked about the timetable for cleanup, Apodaca said “five years is more than fair to let them clean up the most high-risk sites. And I don't think 15 years is unfair. You can drag things out, but it's time to get these ponds cleaned up and off the table.”

The substitute bill also protects consumers by implementing a moratorium on any rate increases by utilities with coal ash ponds until Jan. 15, 2015. Duke executives told lawmakers in April that moving its coal ash away from the state's rivers and lakes could cost up to $10 billion, with electricity customers likely footing most of the bill.

<p>A bill introduced Monday by two Senate leaders would close all unlined coal ash ponds in North Carolina within 15 years and ban the practice of storing wet coal ash in such basins. Four facilities with “high-risk” coal ponds, including one in Skyland, must be cleaned up within five years under its timeline. </p><p>During a Monday hearing by the Senate's committee on agriculture, environment and natural resources, Sen. Tom Apodaca and Senate Leader Phil Berger introduced their bill as a substitute to one they sponsored in May on behalf of Gov. Pat McCrory.</p><p>Under the substitute bill, coal ash ponds at Duke Energy's Dan River, Asheville, Riverbend and Sutton power plants — all of which are considered “high-risk” because of their proximity to major rivers — would have to be excavated and closed as “quickly as practicable,” no later than 2019. </p><p>The bill requires all remaining coal ash ponds at 10 other Duke power plants to be classified as either “intermediate-risk sites” and closed by 2024, or as “low-risk sites” that must be addressed by 2029. Duke has more than 100 million tons of coal ash stored in 33 unlined basins statewide.</p><p>Ash from high- and intermediate-risk sites must be stored in lined landfills or recycled toward a beneficial use such as roadway construction. But low-risk ponds could be capped in place if state environmental regulators and a new coal ash commission created by the bill agree it would be safe.</p><p>“We're going to set the standard for the rest of the country on coal ash,” said Apodaca. “Nobody has ever attempted to do anything like this. (The problem) definitely exists in Kentucky and Tennessee, but we haven't seen that much legislation dealing with it. We're going to, in a comprehensive way.”</p><p>The bill mandates that all future coal ash must be managed in new or existing lined landfills with extensive groundwater monitoring. It also requires pond owners to divert stormwater away from their impoundments, to avoid a repeat of the ruptured pipe that leaked roughly 39,000 tons of coal slurry into the Dan River last February.</p><p>While applauding the bill's elimination of future wet ash storage, attorney D.J. Gerken of the Southern Environmental Law Center in Asheville said the bill provides “very little guidance or standards to prevent truly risky sites from being placed in the low-risk category” and having utilities simply cap them.</p><p>“The truth is, no coal ash pond in the state of North Carolina is a low-risk site,” Gerken said. “It is a disaster to leave DENR the discretion to stick with the plan it has embraced for years, which is covering them over with dirt and walking away.”</p><p>Although the intent of the bill is to prevent wet coal ash from leaching toxins into groundwater or adjacent rivers, Gerken said the bill “allows the possibility of leaving the ash in place without a liner, even for high-risk impoundments.” That's because the bill cross-references an existing state regulation regarding industrial landfills, he said.</p><p>That regulation allows Duke to forgo lining coal ash disposal sites “if they demonstrate to DENR that they have a design that (computer) models say will meet water quality standards. So if DENR accepts something Duke is doing, it's not obligated to remove the ash and line it.”</p><p>But Apodaca said the “true beauty of this bill is it won't just be DENR making these decisions. That's why we have a coal ash commission, which is made up of nine experts from different backgrounds: health, power, conservation, waste management. We're going to have a full mixture of folks and that's who will be making these decisions.”</p><p>The Coal Ash Management Commission would review and approve risk classifications and closure plans proposed by ash pond owners and DENR. The bill also creates 29 new positions for overseeing coal ash management, 25 at DENR and four commission staff. All of these would be funded by coal-fired utilities, senators said, and the bill forbids them from passing that cost onto consumers.</p><p>Duke Energy leaders were still reviewing the bill in detail, said Spokesman Jeff Brooks, “but it's clear already that the bill's timeline is much more aggressive than the plan we had originally proposed to the governor and our operational plan.”</p><p>Brooks cited a presentation Duke gave to lawmakers to illustrate the potential challenges and costs of moving all of its coal ash. To clear out all 22 million pounds stored at the Marshall Steam Station on Lake Norman, near Charlotte, would take 30 years working 12 hours a day, six days a week, he said.</p><p>“This legislation is going to require all ash basins to be addressed in 15 years,” Brooks said. “So we agree that coal ash needs to be addressed in a timely fashion, but this bill will place significant burdens on the company to meet this deadline and this plan, if passed.”</p><p>Asked about the timetable for cleanup, Apodaca said “five years is more than fair to let them clean up the most high-risk sites. And I don't think 15 years is unfair. You can drag things out, but it's time to get these ponds cleaned up and off the table.”</p><p>The substitute bill also protects consumers by implementing a moratorium on any rate increases by utilities with coal ash ponds until Jan. 15, 2015. Duke executives told lawmakers in April that moving its coal ash away from the state's rivers and lakes could cost up to $10 billion, with electricity customers likely footing most of the bill.</p><p>___</p><p>Reach Axtell at than.axtell@blueridgenow.com or 828-694-7860.</p>